J.N. Bhatt, J.
1. The grievance voiced by the petitioner in this petition under Article 227 of the Constitution of India is that the Gujarat Revenue Tribunal by its order dated 29-10-1993 has committed illegality in quashing and setting aside two concurrent and consistent judgments recorded by Mamlatdar & A.L.T., Gandevi, in Tenancy Case No. 70-B-5256 of 1984 and confirmed in Tenancy Appeal No. 1 of 1990 by the Deputy Collector on 15th January 1991.
2. A few material facts leading to the rise of the present petition may be narrated at this juncture first. The petitioners are the heirs and legal representatives of deceased Chhotubhai Vallabhbhai. According to the case of the petitioners, deceased Chhotuabhai was a tenant under the Bombay Tenancy and Agricultural Lands Act, 1948 ('the Tenancy Act' for short) in respect of agricultural lands bearing survey No. 377 admeasuring 30 gunthas originally belonging to Pragjibhai Dahyabhai Naik and Dhirubhai Dahyabhai Naik. Dhirubhai Dahyabhai Naik got the disputed land in partition with effect from 4-4-1972.
Deceased Chhotubhai had submitted an application under Section 70(b) of the Tenancy Act for the declaration that he is a tenant in respect of the disputed land situated at Gandevi in District Valsad. This application came to be submitted on 30-12-1978. Upon the appreciation of the facts and circumstances the Mamlatdar and A.L.T., Gandevi, rejected the said application by his order dated 20th April 1983 holding that there were no tenancy rights. The matter was carried in an appeal before the Collector by deceased Chhotubhai. The appeal came to be allowed by the Deputy Collector and the Deputy Collector directed that the matter be remanded for a fresh inquiry after giving an opportunity of leading the evidence to the parties.
3. After the remand order, the petitioners did not lead any further evidence nor did they produce other documentary evidence. The respondents herein led additional evidence and after hearing the parties and examining the facts and circumstances the Mamlatdar and A.L.T., Gandevi, by his order dated 2-7-1989 allowed the application under Section 70(b) and declared that deceased Chhotubhai was a tenant with effect from 1-4-1957. The appeal was heard under Section 74 of the Tenancy Act and was decided on 2-7-1989 in favour of the petitioners. Being aggrieved by the said judgment and order of the Mamlatdar and A.L.T. the respondents had filed a revision application under Section 76 of the Tenancy Act challenging the order of the Deputy Collector before the Gujarat Revenue Tribunal.
On appreciation of the facts and circumstances and the evidence emerging from the record and considering the relevant provisions of law, the Gujarat Revenue Tribunal, by its order dated 29-10-1993, allowed the revision quashing the order of Mamlatdar and Deputy Collector and thereby held that deceased Chhotubhai was not the tenant in respect of the disputed land. On being dissatisfied by the judgment and order of the Tribunal recorded on 29-10-1993 the petitioners have, now, come up before this Court by filing the present petition taking the aid of Article 227 of the Constitution of India.
4. The learned Counsel Mr. Shah while appearing for the petitioners has contended that the Gujarat Revenue Tribunal ('the Tribunal' for short) has exceeded its jurisdiction in appreciating and re-examining the finding of facts recorded by the two authorities below. His submission is that the judgment of the Tribunal is perverse, illegal and therefore, the same should be quashed in this petition under Article 227 of the Constitution of India. In support of his submission, he has placed reliance on three decisions, the reference of which will be made hereinafter at an appropriate stage.
5. learned Counsel Mr. Sanjanwalla while appearing for the respondent has vehemently opposed the aforesaid submissions and has contended that the impugned judgment of the Tribunal is quite jusi. legal and proper. As per his submission, the Tribunal was obliged to reverse the findings of the authorities below as there was non-application of mind and non-appreciation of the important evidence by the authorities below. It is also submitted by him that the jurisdictional scope in a petition under Article 227 is very circumscribed. Therefore, it is urged that the petition is without merits and should be dismissed.
6. Ordinarily, the revisional powers are circumscribed. However, the scope and the ambit of the powers for a revision has to be judged and decided in the light of the relevant provisions under which revisions are to be heard. In the present case, the Tribunal exercised its powers conferred under Section 76 of the Tenancy Act and found that there was no appreciation of important evidence and there was non-application of mind to the vital evidence on record. It is true that both the authorities, namely, Mamlatdar and A.L.T. and the appellate authority, Deputy Collector, concurrently and consistently held that deceased Chhotubhai was a tenant since 1-4-1957. Upon the appreciation of the evidence by exercising its power conferred by Section 76 of the Tenancy Act, the Tribunal found that the conclusion recorded by both the authorities was not based on correct evidence and there was no appreciation of important evidence of the respondents and therefore, the Tribunal while quashing and setting aside the concurrent findings of authorities below held that both the authorities below were in error as partly there was non-application of mind to the evidence which was very important and non-appreciation of the evidence which was required to be appreciated as it was an important piece of evidence. It is in this context that the merits of the present revision and the relevant provisions are required to be examined and scrutinised.
7. The provisions of Section 76 prescribe revisional powers to the Tribunal. Section 76 reads as under:
76.(1) Notwithstanding anything contained in the Bombay Revenue Tribunal Act, 1957, an application for revision may be made to the Gujarat Revenue Tribunal constituted under the said Act against any order of the Collector except an order under Section 32P or an order in appeal against an order under Sub-section (4) of Section 32G on the following grounds only:
(a) that the order of the Collector was contrary to law;
(b) that the Collector failed to determine some material issue of law; or
(c) that there was a substantial defect in following the procedure provided by this Act or that there has been failure to take evidence or error in appreciating important evidence which has resulted in the miscarriage of justice.
(2) In deciding applications under this section the Gujarat Revenue Tribunal shall follow the procedure which may be prescribed by rules made under the Act after consultation with the Gujarat Revenue Tribunal.
8. It could very well be seen from the aforesaid provisions that the Tribunal is empowered to exercise powers under Section 76 of the Tenancy Act in case of following contingencies:
(i) That the order of the Collector was contrary to law;
(ii) That the Collector failed to determine some material issue of law; or
(iii) That there was substantial defect in following the procedure provided in the Tenancy Act or when there has been failure to take evidence or error in appreciating important evidence which has resulted in the miscarriage of justice.
9. Insofar as Clauses (a) and (b) of Sub-section (1) of Section 76 are concerned, it is correct to say that the Tribunal cannot interfere unless there is a question of law or a decision is contrary to law or the decision in question is suffering from vice of non-application of mind to the material issue of law. However, Clause (c) of Sub-section (1) of Section 76 provides that the Tribunal can exercise revisional powers under Clause (c) in the following contingencies:
(i) That has been a substantial defect in following the procedure as provided in the Tenancy Act;
(ii) That there has been a failure to take evidence;
(iii) That there has been an error in appreciating important evidence resulting into miscarriage of justice.
10. Insofar as first and second categories in Clause (1) are concerned, they are not attracted in the light of the facts of the present case. Insofar as the third category is concerned, it is relevant and important for the present purpose. The contention is that the Tribunal exercised its revisional powers in view of the serious error in appreciating the important evidence which has resulted into miscarriage of justice. The aforesaid expression in Clause (c) is very important. The insertion of aforesaid words in Clause (c) of Sub-section (1) of Section 76 in the Tenancy Act has undoubtedly widened the scope of jurisdiction of the Tribunal and it is entitled, because of the insertion of the words, to interfere if there has been an error "in appreciating the important evidence" which has resulted into miscarriage of justice. In the present case the Tribunal noticed that the authorities below had totally overlooked certain vital and important pieces of evidence and had failed to appreciate the important evidence produced on record which has resulted into miscarriage of justice.
11. The finding recorded by the Mamlatdar & A.L.T. in a tenancy case under Section 70(b) of the Tenancy Act that deceased Chhotubhai was a lawful tenant in respect of disputed land since 1-4-1957 which came to be confirmed by the appellate authority - Deputy Collector exercising his powers under Section 74 of the Tenancy Act.
Section 70 of the Tenancy Act prescribes various duties of the Mamlatdar. Under Clause (b) of Section 70 of the Tenancy Act the Mamlatdar is empowered to decide whether a person is or was a tenant or a protected tenant or a permanent tenant. The jurisdiction given to the Mamlatdar & A.L.T. in Clause (b) of Section 70 is required to be exercised judicially and on the sound principles of Evidence Act. Having closely examined the factual scenario emerging from the record of the case it could sufficiently be concluded that the Mamlatdar & A.L.T. has failed to address himself to the vital and important documentary evidence on record. Not only that he has also committed a serious error in not appreciating the important evidence of the respondents. The erroneous and illegal conclusion recorded by the Mamlatdar & A.L.T. exercising powers under Clause (b) of Section 70 and declaring the deceased-Chhotubhai as a tenant right from 1-4-1957 is mechanically came to be confirmed by the appellate Court in an appeal under Section 74 of the Tenancy Act. The Deputy Collector who decided the appeal on 15th January 1991 has also repeated the same error of law and facts as committed by the Tenancy Court, Mamlatdar & A.L.T., Gandevi. What is relied by the authorities below is not important and germane to the issue of tenancy. The documentary evidence on record clearly goes to show that since 1951 till the year of dispute in the record of rights and other revenue record the cultivation in the disputed land is shown to have been made by the respondents, the owner of the land, and not by deceased - Chhotubhai or his heirs who alleged to be the tenants in respect of the disputed land. No documentary evidence worth the candle carrying any relevance or importance had been produced by or on behalf of the tenant which would connect him with his alleged tenancy right in respect of the disputed land except few receipts showing the payment for irrigation which, unfortunately, do not show the number and the name of the land in dispute or the place for which the facility of irrigation was obtained. As against that, there is voluminous documentary evidence produced by the respondents - original owners of the disputed land which clearly and unfailingly go to show that the land in dispute has been in cultivation and/or in use or in their enjoyment since 1950-51. The Tribunal, therefore, was constrained to quash and set aside the impugned judgments and orders of the authorities below as they are suffering from the vice of non-application of mind and non-appreciation of material facts which has resulted into miscarriage of justice. In this context, it cannot be contended for a moment that the exercise of jurisdiction under Section 76 of the Tenancy Act by the Tribunal was in no way unjust, erroneous or illegal. On the contrary, this Court is satisfied that the ultimate conclusion recorded by the Tribunal while reversing the conclusion of the authorities below is justified.
12. The question in focus was whether the deceased Chhotubhai, predecessor of present petitioners was a tenant in respect of the disputed land bearing survey No. 377. The declaration was sought from the Tenancy Court taking the aids of provisions of Section 70(b) that deceased Chhotubhai was a tenant in respect of the disputed land bearing survey No. 377. One of the contention raised by the original applicant was that he had used the land in question and had cultivated and he had his own hut whereas in reality it is noticed from the record that the hut was not on the disputed land bearing survey No. 377 but in a land bearing revenue survey No. 378 part. Not only that but deceased - Chhotubhai or the present petitioners have not been able to lead reliable, ocular or any acceptable evidence in support of their plea of tenancy rights in respect of the land bearing survey No. 377. From the revenue record produced on the record of the case in respect of survey No. 377, it becomes amply clear that the name of respondent - Pragjibhai Dahyabhai Nayak is shown as the person cultivating the land. When in the column of cultivation it is consistently shown right from 1951-52 to 1971-72 that cultivation is by respondent - Pragjibhai Dahyabhai, then where is the question of cultivation by Chhotubhai? There is no evidence led by the petitioners which would even remotely support the plea of tenancy. On the contrary, it is found from the record that deceased Chhotubhai had himself admitted in a cross-examination that he was at the relevant time doing casual labour work and partly doing painting work sometimes with Mohammad Rangwala and sometimes with Chhaganbhai. The evidence goes to show that deceased Chhotubhai was sometimes doing agricultural labour work and sometimes he was doing other casual labour work. He was working from morning to evening at Gandevi as admitted in his evidence. A plain perusal of the admission unequivocally made by deceased - Chhotubhai in his testimony before the first Tenancy Court clearly goes to show that he was not a tenant cultivating the disputed land right from 1-4-1957 as erroneously concluded by the two authorities below. This exhibits non-application of mind and also demonstrates non-appreciation of important documentary evidence led by the respondents. It is in this context that the exercise of revisional power relying on Clause (c) of Section 76 of the Tenancy Act is just, proper and legal.
13. It may also be remembered that the jurisdictional sweep in a petition under Article 227 of the Constitution of India is very much narrowed down and circumscribed in a narrow compass. In this connection, the proposition of law is very well expounded, explained and clarified by catena of judicial pronouncements. The reliance is placed by the learned Counsel for the respondents on a decision of this Court rendered in Anishbhai Ishabhai Patel v. State of Gujarat and Ors. reported in 1994(2) GCD 271 : 1994(2) GLR 1402 (Gujarat) (Coram: J.N. Bhatt, J.). The scope and the extent of power under Article 227 of the Constitution of India are very much explained. It is held by this Court that the scope and the extent of powers of this Court are very much circumscribed. This Court is not sitting in an appeal against the verdict of the statutory authority below.
14. The powers of this Court under Article 227 of the Constitution of India are required to be exercised cautiously as they are designed to be used sparingly and only in certain proper cases so as to keep the subordinate Courts, Tribunals and statutory authorities below within the bounds of their functioning and authority. It is also observed by this Court in the said decision that the powers are not intended to be used for correcting mere errors. When there are findings of facts, no interference is called for unless the impugned order or decision is shown to be manifestly perverse, illegal or against the provisions of law or if it is shown to be with ulterior and capricious considerations like mala fides. The ratio propounded in the said decision is clearly attracted in the present case. In short, it must be noted that the power of this Court in a writ petition under Article 227 of the Constitution of India is power of superintendence and it has been limited in a narrow compass. The finding of fact recorded by the Tribunal reversing the decisions and orders of two authorities below is a factual finding based on evidence. The revisional authority under Section 76(1) could interfere even in a finding of fact in a given case if there has been an error in appreciating the important evidence resulting into miscarriage of justice by virtue of insertion of aforesaid provision which has widened its scope. Therefore, on that ground also this Court is not in a position to interfere with the impugned order of the Tribunal.
15. The learned Counsel for the petitioners has placed reliance on a decision of Apex Court in Sita Ram Bhau Patil v. Ramchandra Nago Patil . In the light of the facts of the present
case the said decision is not applicable. There was also no question of appreciation and examination of the amended provisions of Clause (c) of Section 76 of the Tenancy Act. Therefore, the said decision does not carry the case of the petitioner any further.
16. Next the reliance is also placed on a decision of this Court rendered in Divaliben v. M.V. Ahir 1995(1) GLH 578 (Coram: A.N. Divecha, J.). The principle laid down in the said decision is that the revisional jurisdiction of the Tribunal can be exercised in case of substantial error in procedure and it must also result into miscarriage of justice. Thus, it is held by this Court in the said decision that in order to attract the rigors of the provisions of Section 76(1)(c) of the Tenancy Act both the conditions must be satisfied. This proposition of law is quite clear and I am in full agreement with that. If the defect is substantial and if the error in appreciation of important evidence is found out but if it does not result in miscarriage of justice, ordinarily, the Tribunal will be bound and will not be able to exercise its revisional jurisdiction. So is not the present factual scenario as could be seen from the aforesaid discussion.
17. There has been a serious error in appreciation of important evidence which has resulted into miscarriage of justice. The authorities below failed to exercise the jurisdiction properly. Not only that but authorities below failed to consider.important evidence of the land owners. Still as if it is not sufficient the authorities below remained oblivious to the important voluminous documentary evidence on record of rights. In the circumstances, both the conditions came to be fulfilled attracting the provisions of Section 76(1 )(c) of the Tenancy Act and there was a fit and proper case for exercise of the powers under revisional jurisdiction which is rightly done. Therefore, the learned Counsel for the petitioners is not able to make any capital out of it.
18. The learned Counsel for the petitioners has also relied on the decision of this Court in Raj Madhavsang v. Parmar Rcmchhodbhai reported in 1976 GLR 689. In that case it is held that the jurisdiction of the Revenue Tribunal under Sub-section (1) of Section 76 of the Bombay Tenancy Act is inter alia confined to correction of an error in appreciating important evidence which has resulted into miscarriage of justice. It is further observed that correction of an error in appreciating important evidence which has resulted in the miscarriage of justice cannot be equated with the power to reappreciate the entire evidence. This decision also does not help the petitioners.
19. Lastly, it was also contended that the Gujarat Revenue Tribunal has failed to properly appreciate the provisions of Section 4 of the Tenancy Act. It is submitted that the tenant who is lawfully cultivating any land belonging to another shall be deemed to be a tenant and in such a situation the name of tenant may not be there in the revenue record. This submission is not acceptable. Section 2(1B) will be important to be examined and it reads as under:
2(1B) "tenant means a person who holds land on lease and includes:
(a) a person who is deemed to be a tenant under Section 4;
(b) a person who is a protected tenant; and
(c) a person who is a permanent tenant;
(d) a person who, after the surrender of his tenancy in respect of any land at any time after the appointed day but before the specified date has continued, or is deemed to have continued, to remain in actual possession, with or without the consent of the landlord, of such land till the specified date;
and the word "landlord" shall be construed accordingly.
It could very well be seen from the aforesaid provision that the person who claims to be a deemed tenant under Section 4 is also covered under the definition of "tenant". Section 4 of the Tenancy Act makes provision for deemed tenancy which reads as under:
4. A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not --
(a) a member of the owner's family; or
(b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner's family, or
(c) a mortgagee in possession.
Explanation I - A person shall not be deemed to be a tenant under this section if such person has been on an application made by the owner of the land as provided under Section 2-A of the Bombay Tenancy Act, 1939, declared by a competent authority not to be a tenant.
Explanation II - Where any land is cultivated by a widow or a minor or a person who is subject to physical or mental disability or a serving member of the armed forces through a tenant then notwithstanding anything contained in Explanation I to Clause (6) of Section 2, such tenant shall be deemed to be a tenant within the meaning of this section.
20. In order to fall within the deemed tenancy, a person claiming such right must prove that he was lawfully cultivating any land belonging to another person. The contention that this aspect is overlooked and neglected by the Tribunal is also not supportable and acceptable. The Tribunal has rightly found that the petitioners have not been able to prove that they or their predecessor were lawfully cultivating the land in dispute bearing survey No. 377. And the katcha hut is situated in survey No. 378. There is no authenticated and reliable evidence to show that the petitioners or their predecessors were lawfully cultivating the land in dispute. On the contrary, it is found from the revenue record that respondents have been in occupation and enjoyment of the disputed land and they have been shown personally cultivating the said land with the result the petitioners do not fall within the ambit of the category of persons deemed to be tenants under Section 4 of the Tenancy Act. Therefore, the submission raised in this behalf by the learned Counsel for the petitioners is required to be rejected.
21. Having regard to the facts and circumstances and the relevant aforesaid proposition of law, this Court has no hesitation in finding that the impugned order of the Tribunal is justified and the present revision is meritless. Therefore, it is dismissed with costs. Rule is discharged.
At this stage, the learned Counsel for the petitioners states that the interim relief may be extended for a further period of two months so as to afford an opportunity of pursuing the remedy in higher forum. In the facts and circumstances, this submission is quite reasonable. Therefore, the interim relief shall stand operative till 19th June 1996.